Escolar Documentos
Profissional Documentos
Cultura Documentos
~epublic
of tbe llbtlippines
~upreme
<!Court
-ov~L
TAN
. ,.,'.,;...:._.,
:~TAN
.,,,, . Div:c~
'
~Clerk
i~ l ~- '-1
of Court
Divis lo n
AUG I 9 2016
jflllanila
THIRD DIVISION
- versus -
Promulgated:
July 27 9 2016
------------------------------------------------------~~---~- x
DECISION
PEREZ, J.:
Before the Court is an appeal from the Decision 1 of the Court of
Appeals (CA) dated 29 July 2013 in CA-G.R. CR HC No. 01183, affirming
the Decision 2 of the Regional Trial Court (RTC), Branch 33, Calbiga, Samar
which found appellant Luisito Gabome y Cinco guilty of the crime of
Murder with the use of Unlicensed Firearm, as defined in Article 248 of the
Revised Penal Code (RPC) as amended by Sec. 6 of Republic Act (R.A.) No.
7659, and Frustrated Murder as defined in Article 248 in relation to Article
50 of the RPC, respectively.
Together with two others, appellant was charged with Murder with the
use of Unlicensed Firearm and Frustrated Murder in the following
Informations:
*I
Decision
The Facts
Decision
The antecedent facts culled from the Appellee's Brief> and the records
of the case are summarized as follows:
On 2 February 2007 at around 10:30 in the evening, Rey Perfecto De
Luna (De Luna) and Sixto Elizan 7 (Elizan) entered a videoke bars at
9
Barangay Mugdo, Hinabangan, Samar. Noli Abayan (Abayan), appellant
and Joselito Bardelas (Bardelas) followed five minutes thereafter. 10
While Elizan and De Luna were drinking, singing and merely having
fun, four successive gunshots 11 were fired through the window. Because of
this, Elizan and De Luna were hit from behind. 12 Later on, De Luna 13 and
Marialinisa Pasana 14 (Pasana) saw appellant, who was then wearing a black
t-shirt and a black cap, holding a gun aimed at their location. Pasana also
saw accused-appellant and Bardelas escape after the incident. 15
Elizan and De Luna were brought to St. Paul's Hospital at Tacloban
City. Unfortunately, Elizan was pronounced dead upon arrival. De Luna,
on the other hand, survived. 17
16
9
IO
II
12
13
14
15
16
17
18
19
20
21
22
Decision
Decision
affirmed;
2. The award of moral damages in the amount of Php50,000.00 m
Criminal Case No. [CC-]2007-1640 is affirmed;
3. The award of exemplary damages in the amount of Php25,000.00 in
Criminal Case No. [CC-]2007-1640 is affirmed;
4. In Criminal Case No. [CC-]2007-1650, accused-appellant is ordered to
pay moral damages to the private offended party, Rey Perfecto De
Luna, in the amount of Php40,000.00;
5. In Criminal Case No. [CC-]2007-1650, accused appellant is likewise
ordered to pay exemplary damages to the private offended party, Rey
Perfecto De Luna, in the amount of Php20,000.00; and
6. Accussed-appellant is further ordered to additionally pay the private
offended parties in the two criminal cases, Rey Perfecto De Luna and
the heir/s of Sixto Elizan, interest on all damages at the legal rate of
six percent (6%) from the date of finality of this judgment until the
amounts awarded shall have been fully paid. 26
Appellant appealed the decision of the CA. The Notice of Appeal was
given due course and the records were ordered elevated to this Court for
review. In a Resolution27 dated 19 February 2014, this Court required the
parties to submit their respective supplemental briefs.
Both parties
24
25
26
27
Decision
manifested that they are adopting all the arguments contained in their
28
respective briefs in lieu of filing supplemental briefs.
Our Ruling
We find that the degree of proof required in criminal cases has been
met in the case at bar. Appellant's defenses of denial and alibi are bereft of
merit.
Assailing the legality of arrest should
be made before entering a plea
Before anything else, we resolve the procedural issue raised by the
appellant. 29
Any objection involving a warrant of arrest or the procedure by which
the court acquired jurisdiction over the person of the accused must be made
before he enters his plea; otherwise, the objection is deemed waived. 30 In
People v. Velasco, 31 this Court held that the accused is estopped from
assailing the legality of his arrest for his failure to move for the quashal of
the Information before arraignment. In this case, appellant only questioned
the legality of his arrest for the first time on appeal. 32
Furthermore, even granting that indeed there has been an irregularity
in the arrest of the appellant, it is deemed cured by his voluntary submission
to the jurisdiction of the trial court over his person. 33 Thus, appellant is
deemed to have waived his constitutional protection against illegal arrest34
when he actively participated in the arraignment35 and trial of this case. 36
Elements of Murder and Frustrated
Murder were established
This Court finds that the circumstance of treachery should be
28
29
30
3l
32
33
34
35
36
Decision
Thus, the elements of murder are: (1) that a person was killed; (2) that
the accused killed him or her; (3) that the killing was attended by any of the
qualifying circumstances mentioned in Article 248 of the RPC; and (4) that
the killing is not parricide or infanticide. 37
Furthermore, there is treachery when the offender commits any of the
crimes against the person, employing means, methods or forms in the
execution thereof, which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party
. ht mak e. 38
m1g
The requisites of treachery are:
37
18
Decision
In this case, the hapless victims were merely drinking and singing infront of the videoke machine when shot by the appellant. The firing was so
sudden and swift that they had no opportunity to defend themselves or to
retaliate. Furthermore, appellant's acts of using a gun and even going out of
the videoke bar evidently show that he consciously adopted means to ensure
the execution of the crime.
In addition, the lower courts appropriately found appellant liable for
the crime of Frustrated Murder.
A felony is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will
of the perpetrator. 40
Dr. Angel Cordero M.D. categorically said that De Luna could have
died because of the wounds if the surgery was not conducted timely. 41
Hence, appellant performed all the acts of execution which could have
produced the crime of murder as a consequence, but nevertheless, did not
produce it by reason of a cause independent of his will, which is, in this
case, the timely and able medical attendance rendered to De Luna.
40
41
42
People v. Pirame, 384 Phil. 286, 30 l (2000) citing People v. Gatchalian, 360 Phil. l 78, 196-197
(1998).
Serrano v. People, 637 Phil. 319, 335 (20 l 0).
TSN, 29 January 2009, p. 38.
People v. Ballesteros, 349 Phil. 366, 374 (1998).
Decision
commission of the offense charged does not show guilt and absence of proof
of such motive does not establish the innocence of accused for the crime
charged such as murder. 43 In Kummer v. People, 44 this Court held that motive
is irrelevant when the accused has been positively identified by an
eyewitness.
Evidently, accused-appellant's intent to kill was established beyond
reasonable doubt. This can be seen from his act of shooting Elizan and De
Luna from behind with a firearm while they were innocently singing and
drinking. Intent to kill was also manifest considering the number of gun shot.
. . 45
. db y th e v1ctnns.
woun ds sustame
In the instant case, Pasana and De Luna positively identified accusedappellant as the person who fired shots during the incident:
Pasana's testimony:
Q:
A:
Can you recall who among the five (5) went out?
Yes, Ma'am.
Q:
Of the two (2) among the five (5) who went out, are these two (2)
people or persons here in court right now?
Yes, Ma'am.
A:
Q:
A:
And who are these two (2) persons you are referring to, can you
point it out to the Honorable Court if they are here in [c]ourt right
now?
That person, Ma'am.
Interpreter:
xx xx
Q:
A:
Interpreter:
De Luna's Testimony:
Q:
43
44
45
46
How about the appearance of the guy whom you said holding a
10
Decision
A:
Q:
A:
Q:
A:
Q:
You said that there was also another guy by the window? (the court
butt-in [sic])
THE COURT:
Q:
A:
Excuse me, this man who answered Luisito Gaborne was the one
holding the fire arm?
Yes, your Honor. 47
This Court gives the highest respect to the RTC's evaluation of the
testimony of the witnesses, considering its unique position in directly
observing the demeanor of a witness on the stand. From its vantage point,
the trial court is in the best position to determine the truthfulness of
48
witnesses.
It is doctrinally entrenched in our jurisprudence49 that the defense of
47
48
49
Decision
11
51
52
53
54
55
56
57
Decision
12
firearm license holder of any caliber proves that he is not licensed to possess
the same. Thus, the prosecution was able to prove the existence of the
firearm and that the appellant is not licensed to possess the same
notwithstanding the fact that the firearm used was not presented as evidence.
59
60
61
62
Celina v CA, GR. No. 170562, 553 Phil. 178, 185 (2007) citing People v. ladjaalam, 395 Phil. 1
(2010).
People v. Avecilla, 404 Phil. 476, 483 (2001).
People v. Molina, 354 Phil. 746, 786 ( 1998).
Id. at 786-787.
Records, p. 41.
Decision
13
the imposition of the death penalty for the crime of Murder. However, in
view of R.A. No. 9346, we are mandated to impose on appellant the penalty
of reclusion perpetua without eligibility for parole.
Damages and civil liability
All monetary awards for damages shall earn interest at the legal rate
of six percent (6%) per annum from the date of finality of this judgment
until fully paid.
In the service of his sentence, appellant, who is a detention prisoner,
shall be credited with the entire period of his preventive imprisonment.
63
People v. Jugueta, G.R. No. 202124, 5 April 2016 citing People v. Gambao, 718 Phil. 507, 531
(2013).
14
Decision
SO ORDERED.
EZ
WE CONCUR:
~
._ BIENVENIDO L. REYES
Associate Justice
Mi~~
ESTELA l\{ PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had bee~;eached in
consultation before the case was assigned to the writer of the oljhion of the
Court's Division.
Decision
15
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division Chairperson's Attestation, it is hereby certified that the conclusions
in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.
"<:,n;~O ~AN
Di,::c;"::.n Clerk of
Court
T. i rd DJ vis ton
AUG 1 9 2016